Appointing someone as your guardian does not mean handing over your decision making power.
By creating an enduring guardianship you are protecting your interests, not purchasing a one way ticket to a nursing home.
An Appointment of Enduring Guardian only comes into effect if you reach a point where you are unable to make health and lifestyle related decisions for yourself. While ever you have capacity, you decide where you live and what medical treatment you receive. Your guardian only starts making health and lifestyle decisions on your behalf in the event you lose mental capacity that is, you are not of sound mind or understanding to make those decisions for yourself.
If you have any doubts whatsoever that your family members will act contrary to your best interest, then you need an Appointment of Enduring Guardian that appoints someone who will respect your wishes and do only what is best for you in the circumstances.
If you have specific wishes about where you live or what services you receive in the unfortunate event that you lose mental capacity, you need an Appointment of Enduring Guardian.
If you are opposed to undergoing a certain medical procedure for example blood transfusions, or receiving certain medical treatment, for example, being administered morphine, you need an Appointment of Enduring Guardian.
The friendly solicitors at Everingham Solomons have the knowledge and experience to assist you in appointing a guardian because Helping You is Our Business
Increasingly more of us depend on the “on-line world” to communicate whether it be for business or pleasure or to stay connected with family and friends. Recently the Supreme Court of NSW considered whether a Computer Will left by the deceased before he died was intended to operate as his Will.
Prior to undergoing heart surgery, the deceased confided in his cousin that if anything should happen to him, he had made a Will and it was saved on his computer. When the deceased subsequently died widespread searches failed to locate a signed will amongst the deceased’s personal papers however 2 USB sticks were located. The data on the USB sticks was decrypted and an electronic document was discovered saved as “My Will”.
In NSW there are certain formalities that are required in order to make a valid Will. Failure to observe these formalities can lead to additional delay and expense to your estate.The Computer Document on its own did not satisfy the legal requirements for a valid Will because it wasn’t signed by the deceased in the presence of 2 independent witnesses. An application was made for the Computer Will to be declared as the deceased’s last Will. A Court can dispense with the legal requirements for the execution of a Will and uphold a document as a valid Will if the Court is satisfied that the deceased intended the document to form his Will. The issue to be determined was whether the deceased intended the Computer Document to operate as his Will.
The Court took into consideration the conversation the deceased had with his cousin before he died where the deceased alerted her to the location of his Will “should anything happen” to him and the content of the Computer Document itself. The Court found “The language used in the Computer Document is clearly language of testamentary intention. The deceased was careful to identify with precision those items that he had decided to “leave” to the named persons in the Computer Document” and provided reasons why family members were not named as beneficiaries in the document.
The Court was satisfied that when the deceased informed his cousin that he had made a Will and that it was encrypted and gave her the password, he intended the Computer Document to operate as his last Will.
Whilst ultimately the application was successful, it was not without associated difficulty and delay and uncertainty for the family and friends of the deceased coupled with considerable legal costs much of which could have been avoided if the deceased had consulted his Lawyer to make a Will. At Everingham Solomons, we have the expertise and experience to assist you with all your Estate planning needs because Helping You is Our Business.
Click here for more information on Lesley McDonnell
I know it’s hard to accept but if you think “I’m young and healthy, I’ll worry about estate planning when I’m old and sick”, you are WRONG!
You drive a car, travel overseas, and you are not permanently encased in balls of cotton wool which means it is not just granny that needs to be thinking about protecting her interests.
If you want a say in how your assets are divided after your death, you need a Will. If you don’t have one, the succession legislation will make that decision for you.
If you want to nominate the person/s who will manage your financial and legal affairs should you get stranded overseas or otherwise require assistance, you need a Power of Attorney.
If you want to nominate the person/s who will make health and lifestyle decisions, such as where you live and what medical treatment you receive, in the event that you cannot make those decisions for yourself, you need an Appointment of Enduring Guardian.
If you are mentally incapacitated, for example, suffering from paranoid delusions, or in a coma, and you don’t have a Power of Attorney or Appointment of Enduring Guardian, the Tribunal will appoint someone to assume that role.
You can only make a Will, Power of Attorney and Appointment of Enduring Guardian while you have capacity to understand the nature and effect of the document, so the time is now. Don’t wait until it is too late.
The friendly solicitors at Everingham Solomons have the knowledge and experience to assist you with all of your estate planning needs because Helping You is Our Business.
A Willmaker died in 2015 leaving a Will where she left her estate to two of her children to the exclusion of one daughter. The reasons for excluding her daughter were written into the Will with the following sentence reciting that the Willmaker considered the excluded daughter “to be a compulsive liar and her lies have hurt me severely over the years”. An application was made to the Court by the excluded daughter for the offending sentence to be excluded from the Will on the grounds that the words were of an offensive or libellous nature.
A Court has the power to omit a word or words from a Will in order to protect Court processes from abuse and to prevent unnecessary harm being caused to the subject(s) of the words but this power is to be exercised “on a case-by-case basis and with great care”.
The Court was of the view that the words used in this Will were words calculated “to wound the feelings, arouse anger or resentment in the mind of a reasonable person”. However the words used by the Willmaker did have a testamentary purpose. The words were used to explain why the Willmaker failed to make any provision for her daughter. The Court formed the view that the words used in the Will did not “represent an attempt by the deceased to use her Will as a vehicle for libel. Rather, she has sought to explain the reasons for the disposition of her estate and the exclusion of her daughter from her bounty”. Accordingly the Court refused the application to exclude the offending sentence from the Will.
The lesson to take from this case is for Willmakers to consider recording their reasons for making or not making certain gifts in their Will, not in the Will itself, but by way of a letter or statutory declaration that is separate to the Will. A Will becomes a public document once probate is granted. To avoid Willmakers airing their dirty laundry publicly and in an effort to avoid antagonising a would-be litigant, more often than not, the preferable approach is for a Willmaker to record their reasons separate to the Will. That way, the relevant letter or statutory declaration need never see the light of day unless the Will is contested.
At Everingham Solomons we have the expertise to assist you with all your estate planning needs, because Helping You is Our Business.
Click here for more information on Lesley McDonnell
How do you go about leaving unequal provision of your children in your Will?
Most people either don’t make a Will because they think their wishes won’t take effect or they execute a poorly drafted document which can burden their Executor with having to defend a Family Provision claim with no evidence of why they did what they did.
A Family Provision claim is an application made by an eligible person (spouse, child, dependent etc.) to the Supreme Court seeking that they receive a greater share of your estate to adequately provide for their proper education, maintenance and advancement in life.
You cannot prevent an eligible person from bringing a Family Provision claim. What you can do is attempt to insulate your estate by executing a Statutory Declaration to accompany your Will.
A Statutory Declaration setting out your reasons for distributing your estate in the manner outlined in your Will can:
Reduce the likelihood of a claim being made because it explains your reasoning; and
If a claim is made, reduce the likelihood of it succeeding because it provides the Court with insight into your wishes, information which is not otherwise available and is of invaluable assistance in determining the outcome of proceedings.
The friendly and experienced Solicitors at Everingham Solomons can assist you with all of your Estate Planning needs because Helping You is Our Business.
Making a valid Will is one of the most important things a person can do to protect their loved ones. Over time a Will needs to be reviewed and updated so that it properly reflects life changing events. It is imperative that a Willmaker takes proper professional advice to ensure the Will reflects their wishes and is in conformity with the law. The pitfalls of not doing so are highlighted in a recent Western Australia case.
The Willmaker died leaving a ‘will kit’. The Willmaker was survived by a daughter. The Will left the estate to the daughter who was still a minor at the time of her mother’s death with conflicting trust provisions.
The Executor of the Will applied to the Court for direction as to whether the daughter should receive her interest in the estate upon reaching the age of 18 or 25 years. The Court took into account evidence that the deceased clearly intended that her daughter should not receive the estate until she turned the age of 25 years.
The Court noted “On numerous occasions when dealing with so called homemade Wills, I have observed they are a curse. Homemade Wills which utilise what is sometimes known as a ‘will kit’ are not much better. This case proves the point. The disposition effected by the Will is not complicated and no doubt the testator had clearly in mind what she intended to achieve. But the way the Will is drafted is difficult, and the parties have been put to the trouble and expense of coming to the court seeking directions as to its proper interpretation. If the Will had been drafted by a competent legal practitioner, this problem would not have arisen and the parties would have been spared a great deal of trouble and expense”.
The Court determined that the Will provided for the whole of the deceased’s estate going to the daughter and being postponed only until she reached 18 years of age. Upon attaining 18 years of age, the daughter was entitled to the estate and the trust was at an end.
The inevitable result was an expensive court case over a Will that ultimately failed to carry out the Willmaker’s wishes. All of this could have been avoided if the Willmaker had consulted a lawyer and signed off on a Will which reflected her wishes.
At Everingham Solomons we have the expertise and experience to assist you in making a Will that is tailor made to meet your personal wishes and deals with your particular circumstances Because Helping You is Our Business.
Click here for more information on Lesley McDonnell
An enduring Power of Attorney is a legal document that permits a person (‘the Principal’) to appoint a trusted friend or family member, or more than one (‘the attorney’) to step into the Principal’s shoes and manage their legal and financial affairs if for some reason the Principal’s decision making ability is lost. This type of Power of Attorney is aptly named an enduring Power of Attorney because the attorney’s power to make decisions for the Principal endures or continues if the Principal loses their mental capacity to manage their own affairs.
Any person who acts as an attorney pursuant to an enduring Power of Attorney document has a number of duties. Those duties are now spelt out in writing within the prescribed form of enduring Power of Attorney document.
Those duties include:-
Acting in the best interests of their Principal;
Not conferring benefits on themselves or on anyone else unless they are expressly authorised to do so;
Keeping adequate accounts and records of any dealings with the Principal’s assets, as the attorney may be held accountable for how money or other assets of the Principal are dealt with; and
Ensuring they always act honestly in all matters concerning the Principal’s legal and financial affairs.
If a person acts as an attorney pursuant to an enduring Power of Attorney document it is incumbent upon the attorney to discharge their duties to the Principal faithfully or they can be held accountable for their actions as the following case demonstrates.
In the case of Moylan v Rickard, the children sold their mother’s home pursuant to an enduring Power of Attorney, invested part of the proceeds to cover nursing home fees for their mother and paid the balance to themselves as gifts. The children argued that the gifts were in the Principal’s interest because they preserved the Principals’ pension and associated medical entitlements. The argument was not successful. The Court found the distributions made by the attorneys to themselves “were made in disregard of the interests of their mother [the Principal] and accordingly were not an honest exercise of the power conferred on them” by the enduring Power of Attorney instrument. The Court ordered the attorneys repay the gifts.
Making an enduring Power of Attorney is an important strategy which can help prepare you and your family for a sudden change in your circumstances. At Everingham Solomons, we have the expertise to advise you in relation to all of your estate planning needs including enduring Powers of Attorney, because Helping You is Our Business.
Click here for more information on Lesley McDonnell
In NSW there are certain formal requirements required by law in order to make a valid Will. Whilst “compliance with formal requirements for the making of a Will…may involve unwanted expense and inconvenience for a prospective Will-maker” during their lifetime, a failure to observe these formalities in life can lead to large unintended expenses after death when the intended beneficiaries, and potential claimants on an estate are forced to ask a Court to determine the deceased’s wishes.
Where a person leaves a document that does not comply with the formal requirements for the making of a Will, the matter normally has to be determined by a Court. The Court in turn places a premium on “substance over form in ascertaining the testamentary intentions of a deceased person, and in seeing that his or her beneficiaries get what is due to them”.
In 2012 an 85 year old Will maker died leaving a formal Will and a short video Will. “She expressed a strong desire to speak to her children in making her intentions known to them after her death. She could have done that in a video not intended to have legal consequences” but instead she made a video Will seeking to make additional gifts of money to her children over and above any provision she had made for them in her formal Will of two days earlier.
Whilst this case was a novel one in that a video Will was approved by the Court it was not without its associated difficulties not the least of which being additional delay and expense incurred by the estate in seeking to have the Court determine the deceased’s wishes. The Court was at pains to stress that for the person making the Will and his or her beneficiaries their interests “are best served by compliance with the formalities prescribed by law for the making of a valid Will. They are not intended to be onerous or to do otherwise than to facilitate the orderly administration” of estates according to law.
At Everingham Solomons we have the expertise and experience to assist you in making a Will that is in conformity with current law and deals with your particular circumstances because Helping You is Our Business.
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All too often we hear of people agreeing to be an Executor for a family member or friend without knowing what they have agreed to, what their duties and obligations are, or what they are expected to do.
An Executor is the person/s you appoint in your Will to administer and distribute your estate upon your death. Your Executor does not have to have any legal knowledge or experience, but they must be someone you trust implicitly to act in the best interests of your Estate.
The primary functions of the Executor are to:
Obtain Grant of Probate, if required. Whether or not Probate is required will depend upon the nature and value of the deceased’s assets.
Call in the assets by arranging for them to be transferred or otherwise finalised.
Arrange for debts to be paid. The funeral, testamentary and administrative expenses and all outstanding liabilities are paid from the Estate. The Executor is not personally liable for the deceased’s debts.
Distribute the Estate to the beneficiaries named in the deceased’s Will.
If you are an Executor with questions regarding your role, or a testator who wants to review your Will, the friendly and experienced Solicitors at Everingham Solomons can assist you because Helping You is Our Business.
I was invited to meet with members of the New England Cancer Carers’ Group this week and present to them on some of the legal issues faced by those who find themselves caring for a loved one undergoing treatment for cancer or some other illness.
I was confronted during my research at how many legal issues carers face, mainly as volunteers as well. I felt it was important to reassure the carers that there are many good solicitors and accountants in our region who can assist to work through these issues.
The big ticket items are there – ensuring that their loved one has his or her affairs in order via a Will, an Enduring Power of Attorney, an Appointment of Enduring Guardian (with Advanced Care Directive) and through superannuation arrangements. But there is a fine line that carers must tread between assisting to put those arrangements in place and being perceived to be influencing the decisions being made. That perception may arise particularly where the carer has come along later in the ill person’s life and there are children from an earlier marriage. My advice to the carers was to make arrangements for a visit from the ill person’s solicitor but then step back from the process and allow the solicitor to manage the situation.
Farm and business succession struck me as a big issue too. Where a farm or business has been run by a person who suddenly becomes seriously ill, his or her carer may need to step into the breach and run the farm or business; and be the primary carer as well! Many farmers and business people work with their solicitors and accountants to prepare plans that deal with that eventuality but many do not as well. On top of everything else, it can be very stressful for the ill person, primary carer and the family to have to come together at that time to have the drawn out discussions required to put in place a viable farm or business succession plan.
We discussed a raft of other legal issues as well – the ill person and the carer needing flexible work arrangements from their employers; issues with claims against income protection, trauma, TPD and life insurance policies; workers compensation claims where the illness is work-related; privacy laws and access to medical records; medical negligence claims; issues with funeral arrangements; the executor’s role; and so on.
The solicitors at Everingham Solomons work with carers facing legal issues like those above to provide some peace of mind at a difficult time because Helping You is Our Business.
Click here for more information on Keiran Breckenridge
Appointing someone as your guardian does not mean handing over your decision making power.
